United States v. Steve Singo , 680 F. App'x 190 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4409
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVE G. SINGO,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:15-cr-00027-FPS-JES-1)
Submitted: January 26, 2017 Decided: February 24, 2017
Before TRAXLER and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Donald J. Tennant, Jr., TENNANT LAW OFFICES, Wheeling, West
Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Stephen L. Vogrin, Assistant United States
Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steve G. Singo was convicted after a jury trial of receipt
and distribution of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(2)(A), (b)(1) (2012), and possession of child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2),
and was sentenced to 97 months’ imprisonment. Singo appeals his
sentence, arguing that the district court erred in applying the
two-level enhancement for distribution under U.S. Sentencing
Guidelines Manual § 2G2.2(b)(3)(F) (2015). We affirm.
Singo maintains that the calculation of his base offense
level under USSG § 2G2.2(a)(2) accounted for his distribution of
child pornography and that the two-level enhancement he received
under USSG § 2G2.2(b)(3)(F) for distribution thus amounted to
impermissible double counting. “Double counting occurs when a
provision of the Guidelines is applied to increase punishment on
the basis of a consideration that has been accounted for by
application of another Guideline provision or by application of
a statute.” United States v. Dowell, 771 F.3d 162, 170
(4th Cir. 2014) (internal quotation marks omitted). “It is well
established that the Sentencing Commission plainly understands
the concept of double counting, and expressly forbids it where
it is not intended.” United States v. Schaal, 340 F.3d 196, 198
(4th Cir. 2003) (internal quotation marks and alteration
omitted). “Accordingly, an adjustment that clearly applies to
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the conduct of an offense must be imposed unless” expressly
excluded. Id. (internal quotation marks and alteration
omitted). Singo’s claim of impermissible double counting
involves a legal interpretation of the Guidelines that we review
de novo. See id.
Under USSG § 2G2.2(b)(3)(F), a defendant’s offense level is
to be increased by two levels for distribution of child
pornography that is not to minors and is not for money or other
things of value. The term “distribution” is broadly defined to
include “any act, including possession with intent to
distribute, production, transmission, advertisement, and
transportation, related to the transfer of material involving
the sexual exploitation of a minor.” USSG § 2G2.2 cmt. n.1
(emphasis added). This court has held that “use of a
peer-to-peer file-sharing program constitutes ‘distribution’ for
the purposes of [USSG] § 2G2.2(b)(3)(F).” United States v.
Layton, 564 F.3d 330, 335 (4th Cir. 2009). Thus, “[w]hen
knowingly using a file-sharing program that allows others to
access child pornography files, a defendant commits an act
‘related to the transfer of material involving the sexual
exploitation of a minor.’” Id. (quoting USSG § 2G2.2 cmt. n.1).
Here, undisputed information in the presentence report
adopted by the district court makes clear that Singo’s offense
conduct included his use of a file-sharing network both to
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download and share images and videos of child pornography.
Singo thus committed an act “related to the transfer of material
involving the sexual exploitation of a minor.” USSG § 2G2.2
cmt. n.1. There is no indication from the record that Singo’s
distribution in this regard was to minors or for money or other
things of value; accordingly, the two-level enhancement under
USSG § 2G2.2(b)(3)(F) was to be applied for his distribution
behavior unless the enhancement was prohibited by another
Guidelines provision or statute.
Singo concedes that there is “no explicit language” in USSG
§ 2G2.2 that would prohibit double counting for “any given
behavior,” including the particular behavior of using a
file-sharing network to download and share images and videos of
child pornography. 1 He further has not identified any other
Guideline or statutory provision that would expressly forbid the
applicability of the two-level distribution enhancement in his
case. 2 We further observe that other Courts of Appeals that have
1We observe that Singo references on appeal the two-level
reduction in USSG § 2G2.2(b)(1) in support of his argument of
double counting. Singo, however, does not explain how the
reduction — which he does not contend applies in his case —
supports his conclusion that impermissible double counting
occurred. We therefore reject this argument as a basis to
vacate Singo’s sentence.
2Singo also references 18 U.S.C. § 2252A(a)(2)(A) and the
lack of a special interrogatory submitted to the jury. Singo,
however, neither establishes the relevance of a lack of such
(Continued)
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addressed the issue have rejected double counting objections to
the application of USSG § 2G2.2(b)(3)(F) in prosecutions for
child pornography distribution. See United States v. Walters,
775 F.3d 778, 784-85 (6th Cir.), cert. denied, 135 S. Ct. 2913
(2015); United States v. Cubero, 754 F.3d 888, 893-95 (11th Cir.
2014); United States v. Reingold, 731 F.3d 204, 227-28 (2d Cir.
2013); United States v. Chiaradio, 684 F.3d 265, 282-83
(1st Cir. 2012); United States v. Frakes, 402 F. App’x 332,
335-36 (10th Cir. 2010). We therefore conclude that the
district court did not err in applying the two-level enhancement
under USSG § 2G2.2(b)(3)(F) in this case. 3
interrogatory to his case nor contends that 18 U.S.C. § 2252A
expressly prohibits application of the two-level enhancement
under USSG § 2G2.2(b)(3)(F). We therefore reject these
references as bases for vacating Singo’s sentence.
3Singo also devotes a portion of his brief to recounting:
conclusions and recommendations made by the Sentencing
Commission regarding the emphases placed by the sentencing
scheme set forth in USSG § 2G2.2, a summarily-made argument that
“the Guidelines” fail to “meaningfully distinguish” between
“non-contact offenders” like himself and others “who physically
exploit and do harm to children,” decisions by various other
Circuit and district courts rejecting § 2G2.2 and sentences
based thereon on policy grounds or as otherwise unreasonable, a
request that this court adopt these courts’ “skeptical view” of
USSG § 2G2.2, and a conclusion that these matters “demonstrate
the frustration that the advisory guideline provides for
sentencing in the child pornography area.” Because Singo does
not explain how these matters support his claim of impermissible
double counting in the application of the enhancement under USSG
§ 2G2.2(b)(3)(F), we also reject them as bases for vacating his
sentence.
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Accordingly, we affirm the criminal judgment. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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